Is a dismissal for gross misconduct fair, if the terminated employee was not made aware that a previous behaviour may lead to a termination? This was the question the Employment Appeal Tribunal (EAT) had to ask in the case of John-Charles v NHS Business Services Authority.
In this case, John-Charles worked as an IT network engineer from September 2009. After a history of failing to follow “reasonable management instructions”, a written warning was issued in January 2013.
A few months prior to this written warning in October 2012, it was alleged that this particular employee breached the employer’s IT policies by using an unauthorised device, as well as entering an office building against instructions. As a result of these actions, a formal disciplinary hearing was heard in March 2013. The employer told John-Charles that the manager in charge of the hearing wouldn’t be told about the written warning unless the allegations surrounding the 2012 incident were actually proven to be factual.
The disciplinary manager upheld some of the allegations and did find that John-Charles was guilty of committing gross misconduct. This manager, however, did not decide on the sanction. She did consider giving him a final written warning, and at this time became aware of the written warning that was already issued.
At this point, the HR advisor told the disciplinary manager that issuing a final written warning would actually lead to John-Charles’ dismissal, due to the other written warning already on file. The manager in charge decided it was best to dismiss the employee because the other written warning helped prove that he was unable to follow reasonable directions given by management. He was therefore dismissed for gross misconduct. John-Charles brought multiple claims at this point, unfair dismissal being one of them.
An employment tribunal decided that the employee was dismissed for his conduct back in 2012, which was potentially fair. The employer didn’t necessarily act unreasonably taking the written letter into account, so it was at this point that the tribunal found the dismissal to be fair. John-Charles appealed.
The EAT allowed the appeal and decided that John-Charles was unfairly dismissed because he hadn’t been told the true significance of his written warning. Additionally, the EAT found that he hadn’t been given any chance to make representations on what had become an issue during the disciplinary process. The EAT claimed these two issues made the dismissal unfair and a “breach of the rules of natural justice”.
The EAT also felt that it wasn’t completely unreasonable for the employer to take the written warning into account since it directly related to behaviour. It was the mere fact that there was not a single opportunity for the employee to address this in front of the disciplinary board. This error in procedure is what made the employee’s case.
